Mark A. Stephens and Robert A. McKenzie, both of Columbia, for Appellant.

Mark C. Wilby, of Augusta, Georgia, for Respondent.

ANDERSON, J.: Harry Montgomery, a railroad employee with
CSX Transportation, Inc. (CSX), was injured as he attempted to tighten a bolt
on a railroad track. Montgomery filed this action against CSX Transportation,
Inc. under the Federal Employers’ Liability Act. The circuit court granted
summary judgment. We reverse and remand for trial.

FACTUAL/PROCEDURAL BACKGROUND

CSX Transportation, Inc. (CSX) owns and operates two mainline tracks north
of Charleston, South Carolina: the “A-line” and the “S-line.” The A-line runs
from Charleston to Dillon, South Carolina to Rocky Mount, North Carolina to
Richmond, Virginia and beyond. The S-line runs from Charleston to Andrews,
South Carolina then cuts inland to Hamlet, North Carolina, then to Raleigh,
North Carolina and then cuts eastward and reconnects with the A-line north of
Rocky Mount.

Other than the physical places that the rails run,
there are several significant differences between the A-line and S-line. First,
the A-line is made of “welded rail,” which is continuous quarter-mile rail sections
welded together. Thus, there are no track bolts or nuts on the A-line needed
to hold the rail together. Contrastively, the S-line is made up of “jointed
rail.” “Jointed rail” is made from thirty-nine foot rail sections held together
by “rail joints,” which are iron plates placed on either side of the ends of
the rail where they abut. The plates are attached to the rails by six large
track bolts and nuts which hold the rail sections together.

Second, the A-line is much more active than the S-line in terms of the amount
of traffic run by CSX on the rail. The A-line is a “Class 4 Track” – a high
speed passenger track through which most of the freight is run. On the other
hand, the S-line is a “Class
3 Track” that is mostly used for local freight. Between sixteen and seventeen
trains run daily on the A-line. Approximately three trains run daily on the
S-line.

Third, at the time of the events which form the basis of this suit, the A-line
was in much better condition than the S-line. Harry Montgomery, the plaintiff
in this action and a CSX employee since 1977, described the difference between
the two tracks:

[The S-line] was tore up and run down for many years and you had to be there
to see it. It was—it was a bad railroad track. It was a bad piece of track.
It was rough, it was rugged, there was a lot of work. I mean a whole lot
more work to have been done on that piece of railroad track than it was on
the A Line.

Because of the S-line’s poor condition, CSX placed
a lot of “slow orders” on the S-line, which meant that the freight that needed
to be run was often “backed-up.” In fact, CSX’s employees were told that the
Federal Railroad Administration (FRA) was going to shut down the S-line because
the track was in such bad shape. Fourth, the employees working on the A-line
were given more equipment and much superior equipment than that given to Montgomery,
the only track maintenance employee on the S-line.

Montgomery began working for CSX in 1977. In 1994, he was promoted to foreman.
At the time of Montgomery’s injury in 1999, James F. Reed was Montgomery’s Roadmaster
in charge of both the A-line and the S-line. Darrell Crook was CSX’s Assistant
Division Engineer. There were two track inspectors working for Reed: Montgomery
and Ussery. A track inspector’s job is to inspect the railroad tracks, look
for anything that is unsafe, and try to make it safe or take it out of service.
Montgomery summarized a track inspector’s duties:

[T]ighten[ed] track bolts, replaced broken joints, replaced broken joint
bars, replaced anything that’s—that might be broken or defective in a switch
or on—on, not necessarily in a switch, but preferably in a—well, more important
in a switch or on just railroad tracks to assure proper rock, railroad we
call a balance, but it’s railroad rocks, so that you would understand, make
sure that on a given day if there is a lot of rocks, ample rocks, enough rocks
on a given—anything to make sure that signs, railroad signs, that they’re
supposed to be in place are in place, report anything that we see that’s out
of the ordinary that would—that would allow a piece of track to be unsafe.

Although Montgomery had twenty years of experience and Ussery had only worked
for CSX for two years, Reed and Crook took Montgomery off the A-line and gave
supervision of that line to Ussery. Montgomery was made the inspector of the
S-line. Ussery was then labeled the “Senior” Track Inspector. These changes
occurred approximately one to two months before Montgomery’s accident. Because
Montgomery felt his job would be in danger if he complained, he did not refuse
to work on the S-line.

Montgomery was responsible for the “Andrews Subdivision” of the S-line, a stretch
of track forty-five to fifty miles long. Crook professed that at the time he
assigned Montgomery to the Andrews Subdivision of the S-line, he knew that it
“had a lot of bolts out, [it] had broken bars over there, [it] had a good many
weak ties and had some surface conditions.” In actuality, the condition of
the track was much worse. Few of the bolts that held the jointed rails together
were secure. Some were loose, while others were missing. In fact, some joint
bars needed to be totally replaced and/or lifted up.

Although Montgomery was technically a “foreman”
at the time of his injury, he had no employees working under his supervision
on the S-line. Not only was Montgomery the only person assigned to inspect
the S-line, but he was also the only person to make the repairs and maintenance
on the S-line. Montgomery was required to inspect and repair and/or replace
every bolt on every joint bar on the S-line. There are approximately 130 joints
per mile per rail on the S-line, meaning that there were 3,120 bolts and nuts
that needed to be checked per mile. Montgomery was required to be certain that
more than 70,000 bolts were tightened and/or replaced in addition to all the
other problems with the S-line.

Before Montgomery began work on this project, Crook advised Montgomery that
he knew the S-line “was in bad shape.” Because the S-line was in a state of
disrepair, Crook promised Montgomery that CSX would provide him with a “bolt-tightening
machine” to do the assignment. A “bolt-tightening machine” is a hydraulic,
eight horsepower machine that mechanically tightens and loosens track nuts.
Crook gave Montgomery a bolt-tightening machine, albeit a very old one. However,
Montgomery was provided no other power equipment or welding equipment to repair
the S-line. On the other hand, even though the A-line has no bolts to tighten
(because it was welded rail) and was not in disrepair, Ussery was given a new
truck with which to maintain the A-line. The truck was equipped with a newer
bolt-tightening machine, a MAT-weld unit—a detachable hydraulic and gas-powered
unit that allowed the user to operate power tools while working on the line,
including, but not limited to, power wrenches, power saws, power drills, welding
equipment, and a welding torch.

On Montgomery’s first day of work on the S-line, the old bolt machine given
to him by Crook failed and became inoperable. It was neither repaired nor replaced
by CSX. The other bolt-tightening machine issued to Ussery, the only remaining
machine that CSX allocated to Crook’s department, which covered 1400 miles of
track, was not made available to Montgomery even though Ussery had no real need
for it. Because CSX would not give Montgomery another machine or even Ussery’s
machine, Montgomery’s only alternative was to replace and tighten the bolts
by hand with a three to four foot long manual “track wrench.”

To use the track wrench, Montgomery had to stand on the ground facing the rail
with the head of the wrench pointing down and fastened on the nut. The nut
is on the opposite side of the rail from the bolt head. The head of the bolt
is oblong and fits into an oblong hole on the inside of the joint bar so it
will not move if the nut is tightened or loosened on the other side. Montgomery
would then push the handle of the wrench from right to left to remove the nut
or left to right to tighten the nut.

Every day for the entire day, Montgomery tightened and replaced bolts by hand
with the manual track wrench. Montgomery stated that he “was supposed to go
on as far as, you know, my work time would allow me to [every day].” Although
Montgomery had been working over a month on the S-line’s Andrews Subdivision
at the time he was injured, he had only been able to repair a few of the forty-five
miles of his assignment before he was hurt.

Montgomery was injured on July 13, 1999, between 11:30 a.m. and 12:00 p.m.,
approximately three-and-a-half hours after he began working that day. He was
trying to tighten a loose nut with the track wrench when the nut stiffened up
or froze on the bolt. When Montgomery applied more pressure, the frozen nut
suddenly gave way, the end of the wrench came off the nut, he was thrown between
the rails by his momentum, and he landed hard on the track on his right knee,
side, and elbow. Montgomery explained:

Okay. When I—when I started to tighten this—this bolt, after I seen that
that bolt—that particular bolt was loose, I got my wrench and I—I—I positioned
myself and I, you know, went about trying to tighten it. So I give it a few
turns and at one point the—the wrench, the bolt actually froze, so I went
about giving it some—and I—as I looked, the bolt was not—it was not tightening.
So when I get to—when I went and put my wrench back on there and I tried to
tighten it some more, the bolt had froze, which allowed me to apply just a
little more pressure than normal, and then all of a sudden the whole thing
gave which sent me—threw me across the rail, sent me across the rail.

Montgomery had neck surgery and knee surgery as
a result of the accident.

At the time Montgomery was injured, which was the mid-point in his shift, he
had already tightened or replaced over 200 bolts that day. He was not charged
with violation of any rule by CSX. Yet, the attorney for CSX criticized Montgomery
for trying to free up and tighten the tough bolt. Montgomery realistically
had no option but to try to do so:

Q: Do you have any procedures or instructions for what to do in the event
that a bolt sticks like that one did, any rules or regulations?
A: Well, you’ve got—you’ve got—you have several options, because if you—if—if
given I had that—that—that torch that I was telling you about, you can cut
it off and don’t even have to use a wrench or if a welder was in the area,
you can—you can ask him to cut it off, which is the same as cutting it off.
Q: And then just put a new one on there?
A: That’s right.
Q: Okay. And why did you not just stop and get somebody to come and do that
for y[ou]?
A: Oh, well, no, it’s not like that, Miss. It’s not that every time you
run into a joint bar you call a welder to tighten it. That’s—that’s—that’s
part of your job. I mean, that’s—and you don’t cry—you don’t cry or scream
help every time you run into a minor problem.

According to Montgomery, even if he had called,
no one would have come to cut one single bolt:

Q: She asked could you have called for help. Could you have gotten any
help?
A: It is very doubtful that I would have gotten any. I could have called.

Ms. McLeod: Why is it doubtful?
The Witness: Because of the amount of people that works—that was working
at the time in Bennett Yard, a shortage.

Montgomery filed a personal injury action against CSX under the Federal Employers’
Liability Act (FELA), asserting his injuries were caused “in whole or in part”
by the negligence of CSX. Montgomery alleged that he was assigned an unreasonable
task, maintenance of the entire S-line, and the recurring tightening of bolts
required by this assignment caused his injury. Alternatively, or in combination
with the unreasonable task theory, Montgomery averred he was provided insufficient
equipment for the task assigned. In his complaint, Montgomery specifically
claimed that CSX was negligent “in its engines, cars, appliances, machinery,
roadbed, track, work assignments and methods, works or other equipment” and
in its failure “to exercise reasonable care to furnish and maintain reasonably
safe and suitable equipment and work methods and [to provide] a reasonably safe
place in which to perform his work.”

CSX maintained that it follows job analysis and physical qualifications in
assigning certain jobs. Indeed, Reed stated that a track worker like Montgomery
would only normally be required to tighten two dozen bolts in a normal day of
work and that if a worker has to tighten as many as 100 bolts in a day that
he should be given a bolt tightening machine to properly perform his assignment:

Q: If he had—if—if you knew that a man would have to tighten as many as
a hundred bolts in a day, would you give him a machine to do it?
A: Yes, if we had somebody doing that.

Reed inconsistently claimed that it is appropriate
to require an employee to tighten 100 to 150 bolts a day with a track wrench.
He did not express any opinion about whether 200 bolts was appropriate. Yet,
Montgomery had already done 200 in less than half of the day’s work.

In support of the theories asserted by Montgomery,
he presented affidavits from two experts that show the assignment given to Montgomery
and the tools provided to Montgomery were not reasonably safe. First, Montgomery
produced an affidavit from Don H. Bowden, Sr., a railroad safety consultant.
Bowden has testified concerning common and reasonable work assignments and safety
practices in the railroad industry. He explicated that repairing the Andrews
Subdivision should not have been done by one worker alone:

Under common industry practice, this job should not be done by one man alone.
Mr. Montgomery was assigned to the monumental task of repairing the track
by himself. While it is not uncommon for one man to be assigned a task in
inspecting a track, it is unreasonably hazardous to require one man to not
only inspect the track, but also perform the actual track maintenance himself.
A prudent and reasonable railroad would assign a gang of men to do this type
of job. To do otherwise, in my opinion, subjects the employee to an unsafe
workplace in the railroad industry because an accident is bound to happen.

Bowden declared the track wrench was an unsafe and
unsuitable tool for this assignment:

The unreasonable hazards to which Mr. Montgomery was exposed by working this
track by himself were greatly exacerbated and increased by CSX requiring him
to replace and/or tighten the track bolts with a manual track wrench. While
it is not uncommon for workers to use manual track wrenches to tighten sporadic
loose bolts on a stretch of track, this particular track was in such a state
of disrepair that the use of a track wrench was not only impracticable, it
unreasonably increased the likelihood of injury to Mr. Montgomery. To use
an analogy, a swing-blade works fine to knock-down sporadic weeds on a private
lawn; however, one would not require a man to use a swing-blade to clear several
years of growth on a 100 acre plat of land. In addition to the sheer volume
of bolts that Mr. Montgomery needed to replace and/or tighten, the condition
of the bolts and the track also made the manual track wrench an unsuitable
tool for this job. This track had been neglected by CSX for a long period
of time. As such, CSX should have known that the bolts were very likely to
be “rusted-on,” making them very difficult to remove and/or tighten. Requiring
Mr. Montgomery to work with a manual wrench in these conditions unreasonably
multiplied his risk of injury. Mr. Montgomery’s description of the accident
shows these hazards were present because he was required to use a tremendous
amount of leverage on the wrench to break through the rust. For all of these
reasons, a prudent and reasonable railroad would not have supplied just a
track wrench to Mr. Montgomery to do this job. A prudent and reasonable railroad
would have provided him with another bolt tightening machine when the first
one became inoperable or would have fixed the one assigned to him.

Second, Montgomery submitted the affidavit of Dr.
Tyler A. Kress, Ph.D., a biomechanical engineer. In his affidavit, Dr. Kress
discussed a 1986 study undertaken by the Association of American Railroads,
which indicated that 11.1% of all tool-related injuries resulted from the use
of track wrenches. Dr. Kress opined the type of work that Montgomery was performing
daily and the tools he was given to perform that work created unreasonably dangerous
biomechanical risks to his body:

It is my opinion that (1) the type of work that Mr. Montgomery was performing
daily and (2) the tools he was given to perform that work created unreasonably
dangerous biomechanical risk factors to his body. It is my further opinion
that these risk factors are consistent with his fall and the injuries he sustained
as a result of his fall.

Apparently, Mr. Montgomery was ordered to perform the repetitive motion of
tightening and untightening bolts with a manual track wrench. Proper use
of the track wrench requires the employee to keep the head of the wrench fixed
on the nut that is being tightened or untightened. Keeping the head of the
wrench on the nut is even more important when the bolts and nuts are rusted
and susceptible to being “stuck.” Sporadic use of the track wrench to tighten
and untighten nuts and bolts would not normally cause risk to the human body.
However, performing repetitive tasks daily—and specifically ones that require
push/pull forces of the upper extremity and upper body like the track wrench—are
widely associated with increased risk of injury because of the cumulative
effects of the repetition and fatigue. In Mr. Montgomery’s work environment,
his use of the track wrench was not spora[d]ic because of the sheer number
of bolts that were evidentially in disrepair on this stretch of track. His
fatigue from this manual, repetitive motion was increased by the increased
forces needed to free the nuts and bolts from their rusted condition. With
each repetitive use of the wrench, it became more physically difficult for
Mr. Montgomery to control the wrench and its pivot point where the head is
fastened to the nut. The probabilities of both (1) the wrench slipping off
of the nut and (2) an abrupt motion occurring because of a nut breaking free
are increased significantly due to the repetitive and tiring nature of the
assigned job. It is understandable that Mr. Montgomery may fall if and when
one of these events occur. Therefore, it is my opinion that his fall is a
natural result of the work environment imposed on him by C.S.X.

CSX moved for summary judgment, which the circuit
court granted.

ISSUES

I. Under FELA and South Carolina summary judgment procedure, did the
trial court err in granting the railroad employer summary judgment on a railroad
employee’s claim for negligent failure to provide a safe workplace?

II. Under FELA and South Carolina summary judgment procedure, did the
trial court err in granting a railroad employer summary judgment on a railroad
employee’s claim for negligent failure to provide safe and suitable equipment?

III. Under FELA and South Carolina summary judgment procedure, did the
trial court err in granting a railroad employer summary judgment on a railroad
employee’s FELA combined negligence claims?

Summary judgment is not appropriate where further
inquiry into the facts of the case is desirable to clarify the application of
the law. Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 534
S.E.2d 672 (2000); Schmidt v. Courtney, 357 S.C. 310, 592 S.E.2d 326
(Ct. App. 2003). Even when there is no dispute as to evidentiary facts, but
only as to the conclusions or inferences to be drawn from them, summary judgment
should be denied. Schmidt, 357 S.C. at 319, 592 S.E.2d at 331. Summary
judgment is a drastic remedy which should be cautiously invoked so no person
will be improperly deprived of a trial of the disputed factual issues. Cunningham
v. Helping Hands, Inc., 352 S.C. 485, 575 S.E.2d 549 (2003); Redwend
Ltd. P’ship v. Edwards, 354 S.C. 459, 581 S.E.2d 496 (Ct. App. 2003).

LAW/ANALYSIS

I. Expert Witnesses/Affidavits

Rule 56(e), SCRCP, requires a party opposing summary
judgment to come forward with affidavits or other supporting documents demonstrating
the existence of a genuine issue for trial. Doe v. Batson, 345 S.C.
316, 548 S.E.2d 854 (2001). Where a motion for summary judgment is made and
supported by proper affidavits, a plaintiff cannot rest on allegations in his
pleadings that are controverted by affidavits and/or depositions submitted by
defendants. See Rule 56(e), SCRCP; Manley v. Manley, 291 S.C.
325, 353 S.E.2d 312 (Ct. App. 1987).

Use and admissibility of affidavit and deposition
testimony to rebut a motion for summary judgment is governed by Rule 56(e) and
reads in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated therein. .
. . The court may permit affidavits to be supplemented or opposed by depositions,
answers to interrogatories, or further affidavits.

Section 1 of FELA renders common carrier railroads
“liable in damages to any person suffering injury while . . . employed by [the]
carrier” if the “injury or death result[ed] in whole or in part from the negligence
of any of the officers, agents, or employees of [the railroad].” 45 U.S.C.
§ 51 (1986). When Congress enacted FELA in 1908, its focus was on reducing
injuries and death to employees resulting from accidents on interstate railroads.
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994). Cognizant
of the physical dangers of railroading that resulted in the death or maiming
of thousands of workers every year, Congress crafted a federal remedy that “shifted
part of the human overhead of doing business from employees to their employers.”
Id. at 542 (internal quotations omitted).

FELA is a broad remedial statute which the United
States Supreme Court construes liberally in order to effectuate its purposes.
SeeId. at 543. The Supreme Court has interpreted FELA’s language
liberally in light of its humanitarian purposes. Metro-North Commuter R.R.
v. Buckley, 521 U.S. 424 (1997).

State courts have concurrent jurisdiction to hear
FELA claims. 45 U.S.C. § 56 (1986). A FELA action brought in state court is
controlled by federal substantive law and state procedural law. Norton v.
Norfolk S. Ry. Co., 350 S.C. 473, 567 S.E.2d 851 (2002). However, a form
of practice may not defeat a federal right. Brown v. Western Ry., 338
U.S. 294 (1949); Norton, 350 S.C. at 476, 567 S.E.2d at 853. A FELA
action is controlled by state procedural law as long as the state procedural
law does not conflict with federal substantive right guaranteed by FELA. Norton,
350 S.C. at 476, 567 S.E.2d at 853. It is firmly established that questions
of sufficiency of evidence for the jury in cases arising under FELA in state
courts are to be determined by federal rules. Brady v. Southern Ry. Co.,
320 U.S. 476 (1943); Norton, 350 S.C. at 476, 567 S.E.2d at 853. The
sufficiency of evidence needed to withstand a motion for summary judgment in
a FELA case is controlled by federal, not state law. Norton, 350 S.C.
at 476, 567 S.E.2d at 853.

The United States Supreme Court noted that liability
under FELA rests upon “negligence” and that FELA does not make the railroad
the insurer for all employee injuries. SeeMetro-North Commuter R.R.,
521 U.S. at 429; Gottshall, 512 U.S. at 543. Although railroad workers
are required to prove negligence under the federal FELA standard, the Supreme
Court has held that employees need only show that their employer’s negligence
“played any part, even the slightest, in producing the injury.” Gottshall,
512 U.S. at 543 (emphasis added & internal quotations omitted). A plaintiff’s
burden in a FELA action is significantly lighter than it would be in an ordinary
South Carolina common law negligence case:

[FELA’s] [history] has been said to reduce the extent of the negligence required,
as well as the quantum of proof necessary to establish it, to the “vanishing
point.” While it is still undoubtedly true that there must be some shreds
of proof both of negligence and of causation, and that “speculation, conjecture
and possibilities” will not be enough, there appears to be little doubt that
under [FELA] jury verdicts for the plaintiff can be sustained upon evidence
which would not be sufficient in the ordinary negligence action.

We think there was sufficient evidence to submit to the jury the question
of negligence posed by the complaint. The duty of the employer “becomes ‘more
imperative’ as the risk increases.” Bailey v. Central Vermont Ry.,
319 U.S. 350, 352, 353, 63 S.Ct. 1062, 1063, 1064, 87 L.Ed. 1444 [(1943)].
See alsoTiller v. Atlantic Coast Line R. Co., 318 U.S. 54,
67, 63 S.Ct. 444, 451, 87 L.Ed. 610 [(1943)]. The negligence of the employer
may be determined by viewing its conduct as a whole. Union Pacific
Railroad Co. v. Hadley, 246 U.S. 330, 332, 333, 38 S.Ct. 318, 319, 62
L.Ed. 751 [(1918)]. And especially is this true in a case such as this, where
the several elements from which negligence might be inferred are so closely
interwoven as to form a single pattern, and where each imparts
character to the others.

It is no answer to say that the jury’s verdict involved speculation and conjecture.
Whenever facts are in dispute or the evidence is such that fair-minded men
may draw different inferences, a measure of speculation and conjecture is
required on the part of those whose duty it is to settle the dispute by choosing
what seems to them to be the most reasonable inference. Only when there is
a complete absence of probative facts to support the conclusion reached does
a reversible error appear. But where, as here, there is an evidentiary basis
for the jury’s verdict, the jury is free to discard or disbelieve whatever
facts are inconsistent with its conclusion. And the appellate court’s function
is exhausted when that evidentiary basis becomes apparent, it being immaterial
that the court might draw a contrary inference or feel that another conclusion
is more reasonable.

Under th[e FELA] the test of a jury case is simply whether the proofs justify
with reason the conclusion that e[m]ployer negligence played any part, even
the slightest, in producing the injury or death for which damages are
sought. It does not matter that, from the evidence, the jury may also
with reason, on grounds of probability, attribute the result to other causes.
. . . Judicial appraisal of the proofs to determine whether a jury question
is presented is narrowly limited to the single inquiry whether, with reason,
the conclusion may be drawn that negligence of the employer played any
part at all in the injury or death. Judges are to fix their sights primarily
to make that appraisal and, if that test is met, are bound to find that a
case for the jury is made out whether or not the evidence allows the jury
a choice of other probabilities. The statute expressly imposes liability
upon the employer to pay damages for injury or death due “in whole or in
part” to its negligence. (Emphasis added.)

The law was enacted because the Congress was dissatisfied with the common-law
duty of the master to his servant. The statute supplants that duty with the
far more drastic duty of paying damages for injury or death at work due in
whole or in part to the employer’s negligence. The employer is stripped of
his common-law defenses and for practical purposes the inquiry in these
cases today rarely presents more than the single question whether negligence
of the employer played any part, however small, in the injury or death which
is the subject of the suit. The burden of the employee is met, and
the obligation of the employer to pay damages arises, when there is proof,
even though entirely circumstantial, from which the jury may with reason make
that inference.

The kind of misconception evidenced in the opinion below, which fails to
take into account the special features of this statutory negligence action
that make it significantly different from the ordinary common-law negligence
action, has required this Court to review a number of cases. In a relatively
large percentage of the cases reviewed, the Court has found that lower courts
have not given proper scope to this integral part of the congressional scheme.
We reach the same conclusion in this case. The decisions of this Court
after the 1939 amendments teach that the Congress vested the power of decision
in these actions exclusively in the jury in all but the infrequent cases where
fair-minded jurors cannot honestly differ whether fault of the employer played
any part in the employee’s injury. Special and important reasons for
the grant of certiorari in these cases are certainly present when lower federal
and state courts persistently deprive litigants of their right to a jury determination.

Id. at 506-11 (footnotes omitted) (emphasis
added).

A. Unreasonable Task of Repairing the S-Line Track

As a corollary to the railroad employer’s duty to maintain safe working conditions,
it is required to provide its employee with sufficient help in the performance
of the work assigned to him. Blair v. Baltimore & Ohio R.R., 323
U.S. 600 (1945). Where the failure to provide sufficient help causes, in whole
or in part, injury to the employee, the railroad employer is liable for negligence
under FELA. Yawn v. Southern Ry. Co., 591 F.2d 312 (5th Cir. 1979);
Southern Ry. Co. v. Welch, 247 F.2d 340 (6th Cir. 1957); Deere v.
Southern Pac. Co., 123 F.2d 438 (9th Cir. 1941); Cheffey v. Pennsylvania
R.R., 79 F. Supp. 252 (E.D. Pa. 1948); Louisville & Nashvile R.R.
v. Crim, 136 So. 2d 190 (1961); see alsoDeere, 123 F.2d at
441 (“when failure to provide sufficient help results in injury to an employee,
there exists a ground of negligence which is recognized under [FELA]”); Beeber
v. Norfolk S. Corp., 754 F. Supp. 1364 (N.D. Ind. 1990) (noting that, under
FELA, railroad employer has duty to provide sufficient number of employees to
perform assigned work and failure to provide adequate assistance can be breach
of duty); Leonidas v. Great N. Ry. Co., 72 P.2d 1007, 1013 (Mont. 1937),
aff’d in part and cert. dismissed in part, 305 U.S. 1 (1938) (“It is
fundamental that if the employer fails to use reasonable care to provide a sufficient
number of workmen to conduct the work at hand with reasonable safety, he is
guilty of negligence.”); Lis v. Pennsylvania R.R., 173 N.Y.S.2d 132,
134 (City Ct. 1958) (“That failure or refusal upon the part of a defendant to
provide a sufficient number of workmen to assist one of its employees, if such
additional help is necessarily required by the kind of work to be done, constitutes
negligence under FELA is now so well settled as not to require extended discussion.”).

Here, Montgomery has presented sufficient evidence that a genuine issue of
material fact exists as to whether the failure of CSX to provide him with sufficient
help to repair the S-line caused, at least in part, his injuries.

Because there is sufficient evidence that CSX knew or should have known that
the manual track wrench was an unsafe and unsuitable tool for Montgomery to
use to repair forty-five miles of the S-Line track by himself and Montgomery’s
experts attested factually that the manual track wrench was an unsafe and unsuitable
tool for the circumstances of Montgomery’s assignment, summary judgment should
have been denied. Factually and legally, the jury could reasonably determine
that CSX breached this duty to Montgomery.

C. Totality of Negligence

The United States Supreme Court, in Blair
v. Baltimore & Ohio R.R., 323 U.S. 600 (1945), clarified that, while
several factors operating alone might not constitute negligence, where an insufficient
amount of workers and insufficient tools combine together to create
an unreasonably unsafe place to work, a breach of duty is established:

We think there was sufficient evidence to submit to the jury the question
of negligence posed by the complaint. The duty of the employer “becomes ‘more
imperative’ as the risk increases.” The negligence of the employer may be
determined by viewing its conduct as a whole. And especially is this
true in a case such as this, where the several elements from which negligence
might be inferred are so closely interwoven as to form a single
pattern, and where each imparts character to the others.

Id. at 604 (emphasis added and citations
omitted). The Blair Court held that the fact that the plaintiff was
commanded to undertake the movement of a greased, 1000 pound steel tube, thirty
feet in length, with only a five foot truck and with only a few men “raised
questions appropriate for a jury to appraise in considering whether or not the
injury was the result of negligence as alleged in the complaint.” Id.
at 604-05 (citations omitted). The Court ruled: “We cannot say as a matter
of law that the railroad complied with its duties in a reasonably careful manner
under the circumstances here” and that “the jury, and not the court,
should finally determine these issues.” Id. (emphasis added).

The Blair case is controlling here. To make Montgomery not only work
on the entire Andrews Subdivision of the S-line by himself all day, every day,
until completed, but also limiting his ability to make the numerous repairs
by only providing him with a manual track wrench is primafacie
evidence of negligence, if not negligence as a matter of law. Because there
is sufficient evidence for a reasonable jury to conclude that CSX failed to
provide Montgomery with a safe workplace, the trial court improperly invaded
the province of the jury to determine whether or not CSX was negligent.

CONCLUSION

The trial judge concluded that the expert affidavits did not create a genuine
issue of material fact. In contrariety to the circuit judge’s finding, we come
to the ineluctable conclusion that the expert witness affidavits were not only
admissible but created genuine issues of material fact as to NEGLIGENCE
under FELA. The circuit judge mistakenly and improvidently rejected the experts’
opinions in the case subjudice.

Because a jury may reasonably draw inferences under
the evidence that CSX was negligent, the trial court’s grant of summary judgment
was erroneous. It was improper for the trial court to weigh the quality or
quantity of the evidence or to determine as a matter of law the inferences that
may be drawn. “To deprive [railroad] workers of the benefit of a jury trial
in close or doubtful cases is to take away a goodly portion of the relief which
Congress has afforded them.” Bailey v. Central Vermont Ry., Inc., 319
U.S. 350, 354 (1943).

Accordingly, we REVERSE the circuit court’s
order granting summary judgment and REMAND this case for a jury trial.

REVERSED and REMANDED.

WILLIAMS, J., concurs.

GOOLSBY, J., dissents in a separate opinion.

GOOLSBY, J. (dissenting):
I respectfully dissent. I would affirm the trial court’s determination that
Montgomery failed to present sufficient evidence to survive summary judgment
on any of his three theories of CSX’s alleged negligence under FELA.

A FELA action in state court is controlled by federal substantive law. [1] I agree that, under the federal FELA standard, a plaintiff
in a FELA case need only show that the “employer’s negligence played any part,
even the slightest, in producing the injury.”
[2] Nevertheless, although the quantum of evidence sufficient to present
a jury question of causation in a FELA case is less than that required in a
common law tort case, the plaintiff must still demonstrate some causal connection
between the defendant’s negligence and the alleged injury. [3] As the South Carolina Supreme Court has recognized, “‘the
FELA . . . is not to be interpreted as a workers’ compensation statute.’”
[4]

In support of his argument that sufficient evidence was presented of CSX’s
failure to provide sufficient help with the repair of the S-line, Montgomery
points to the affidavit of Don A. Bowden, a railroad safety consultant, who
stated as follows:

5. Under common industry practice, this job should not be done by one man
alone. Mr. Montgomery was assigned to the monumental task of repairing the
track by himself. While it is not uncommon for one man to be assigned a task
in inspecting a track, it is unreasonably hazardous to require one man to
not only inspect the track, but also perform the actual track maintenance
himself. A prudent and reasonable railroad would assign a gang of men to
do this type of job. To do otherwise, in my opinion, subjects the employee
to an unsafe workplace in the railroad industry because an accident is bound
to happen.

I agree with the trial court
that, because the dispute here did not involve a task that required more than
one worker, such as dragging a heavy object, assigning additional employees
would mean only that the job would be finished more quickly.
[5] Indeed, it was acknowledged by Montgomery himself that CSX imposed
no time limits or quotas for the work Montgomery was performing at the time
of his injury. [6] Moreover, Bowden did not explain
why the task assigned to Montgomery was unreasonably dangerous without additional
help or how Montgomery’s accident was “bound to happen” as a result of this
circumstance. [7]

In addition, Montgomery cites Forcino v. National Railroad Passenger Corp. [8] in support of his argument that an unreasonable
work assignment from CSX proximately caused his injuries. I agree with CSX
that this reliance is misplaced.

In Forcino, the plaintiff, while repairing a track that had been damaged
by a derailment, allegedly injured himself as a result of the strain and fatigue
of the heavy work. Unlike Montgomery, however, Forcino was performing a task
outside his regularly assigned duties when he was injured, had been told to
rush to finish the job to which he had been reassigned, and had worked without
taking his normal afternoon break. In contrast, at the time of his injury,
Montgomery was doing the same tasks that he had been performing for at least
the previous month, had never claimed to be affected by fatigue, and by his
own admission was instructed to go only as far as he was able to work at his
own speed.

Montgomery further challenges the trial court’s determination that “[t]he lack
of any time requirement precludes a claim that defendant exposed plaintiff in
a ‘fatigued and exhausted condition to unreasonable peril’ so that defendant
could be found negligent in doing so.” Assuming without deciding that Montgomery
is correct that the trial court should not have made this finding, this error
is of no consequence. Montgomery never specifically argued on appeal that he
was suffering from fatigue or exhaustion on the day he was injured.

Montgomery further contends that the practical considerations of the burdens
imposed by CSX could yield the inference that he felt pressure to maintain more
bolts than could be reasonably expected of an employee in his situation. This
argument lacks merit.

Montgomery first points out
that, had he tightened only as many bolts as his supervisor agreed was reasonable
during a normal workday, he would have taken almost eight years to complete
his assignment. [9] He further
argues that testimony from his supervisor that CSX would lose profits when a
rail is in disrepair gives rise to an inference that CSX would look unfavorably
on his performance unless he worked at a faster than normal pace. There was
no evidence, however, that Montgomery himself was aware of any financial concerns
of CSX.

Similarly, Montgomery cites
the threat of a shutdown of the S-line by the Federal Railroad Administration
as additional evidence of an internal time pressure imposed by CSX. He testified
in his deposition that there had been “some talks . . . that . . . [the] ‘S’
line was in bad shape, that something had to be done or they were talking about
shutting the railroads down.” I agree with CSX, however, that this evidence
was hearsay and therefore properly rejected by the trial court. [10]

Similarly, I find no merit to Montgomery’s argument that he had presented sufficient
evidence to support a finding that CSX was negligent in providing him with only
a manual track tool.

Under FELA, employers are under a duty to exercise ordinary care to supply
machinery and appliances reasonably safe and suitable for the use of their employees;
however, employers are not required to furnish the latest, best, and safest
appliances, or discard standard appliances upon the discovery of later improvements,
provided those in use are reasonably safe and suitable.
[11] It is undisputed that the track wrench Montgomery was using when
he fell was not defective and was similar to other track wrenches he had used
for the past twenty years.

The focus of this controversy comes down to whether
CSX should have provided a bolt-tightening machine in view of expert testimony
suggesting that a manual track wrench, although not defective, was unreasonably
dangerous for Montgomery’s assignment. [12]

Bowden provided a statement acknowledging that,
although a manual track tool was safe and suitable for sporadic tightening and
untightening of bolts, the Andrews subdivision “was in such a state of disrepair
that the use of a track wrench was not only impracticable, it unreasonably increased
the likelihood of injury to Mr. Montgomery.” Bowden further noted that, as
the S-line “had been neglected by CSX for a long period of time,” “CSX should
have known that the bolts were very likely to be ‘rusted on,’ making them very
difficult to remove and/or tighten.” Similarly, Tyler A. Kress, an industrial
engineer, stated in an affidavit that “when an employee is forced to use a manual
track wrench all day long on rusted and poorly tended nuts and bolts, the risk
of injury increases with each repetitive use.”

I would hold the trial court correctly concluded
that the expert opinions offered in response to CSX’s summary judgment motion
do not give rise to an inference that a manual track wrench was not reasonably
safe for the work that was assigned to Montgomery. There was no admissible
evidence supporting a finding that Montgomery was subject to any pressure with
respect to the amount of work he had to complete in any given time period.
Furthermore, the record is devoid of any suggestion that Montgomery was suffering
from fatigue or other ill effects of repetitive motion. [13]

Finally, citing Blair v. Baltimore & Ohio
Railroad Co., [14] Montgomery argues he presented
sufficient evidence of negligence on the part of CSX through the combined effect
of its failure to provide him with the necessary help and its refusal to give
him proper equipment. I disagree.

In Blair, the Supreme Court, in reinstating
an award under FELA, held there was sufficient evidence of the railroad defendant’s
negligence to have the issue determined by a jury. In so holding, the Supreme
Court stated as follows:

The negligence of the employer may be determined by viewing its conduct as
a whole. And especially is this true in a case such as this, where the several
elements from which negligence might be inferred are so closely interwoven
as to form a single pattern, and where each imparts character to the others.
[15]

Further reading of the opinion, however, indicates
that the cumulative impact of the “several elements from which negligence might
be inferred” was not the deciding factor in the decision. Rather, it is evident
from the text immediately following what is quoted above that the Supreme Court
had already accepted the premise that the railroad employer was negligent in
several respects, any one of which would have been actionable in its own right,
and the relationship between all of these undisputed manifestations of negligence
only enhanced an already meritorious action:

The nature of the duty which the petitioner was commanded to undertake, the
dangers of moving a greased, 1000 pound steel tube, 30 feet in length, on
a 5 foot truck, the area over which that truck was compelled to be moved,
the suitableness of the tools used in an extraordinary manner to accomplish
a novel purpose, the number of men assigned to assist him, their experience
in such work and their ability to perform the duties and the manner in which
they performed those duties—all of these raised questions appropriate for
a jury to appraise in considering whether or not the injury was the result
of negligence as alleged in the complaint. We cannot say as a matter
of law that the railroad complied with its duties in a reasonably careful
manner under the circumstances here, nor that the conduct which the jury might
have found to be negligent did not contribute to petitioner’s injury “in whole
or in part.” Consequently, we think the jury, and not the court should finally
determine these issues. [16]

In contrast, none of the specifications of negligence
alleged in the present case had sufficient evidentiary support to withstand
CSX’s summary judgment motion. Blair therefore is easily distinguishable
from the present case.

[12] SeeMcKennon, 897 F. Supp. at 1027 (“Under FELA, the
proper inquiry is whether the method prescribed by the employer was reasonably
safe, not whether the employer could have employed a safer alternative method
for performing the task.”).

[13] SeeMayhew v. Bell S.S. Co., 917 F.2d 961, 963 (6th
Cir. 1990) (stating that although “relaxed standards applied in FELA and Jones
Act suits” do not require a medical expert “to articulate to a ‘reasonable
degree of medical certainty,’ . . . a medical expert must be able to articulate
that it is likely that the defendant’s negligence, or more than possible that
the defendant’s negligence, had a causal relationship with the injury and
disability for which the plaintiff seeks damages”); Moody v. Me. Cent.
R.R. Co., 823 F.2d 693, 695 (1st Cir. 1987) (“[A]lthough a
plaintiff need not make a showing that the employer’s negligence was the sole
cause, there must be a sufficient showing (i.e., more than a possibility)
that a causal relation existed.”); Collier v. Varco-Pruden Bldgs.,
911 F. Supp. 189, 192 (D.S.C. 1995) (finding an expert’s affidavit “amount[ed]
to nothing more than his speculation as to what ‘most likely’ happened, and
has no support in the record”).